Here’s Why the DMCA Exemption is Good News for Documentary Filmmakers, But Not Fiction Filmmakers

Here's Why the DMCA Exemption is Good News for Documentary Filmmakers, But Not Fiction Filmmakers

The U.S. Copyright Office has announced a Digital Millennium Copyright Act (DMCA) exemption that will allow documentary filmmakers to access and use footage that was previously unavailable to them, but the exemption doesn’t extend to fiction filmmakers — not even for films depicting historical events, such as biopics.

“Footage standards are progressing at an unbelievable rate,” said Professor Jack Lerner, director of the UC Irvine Intellectual Property, Arts, and Technology Clinic, which represented filmmakers and organizations seeking this exemption. “Given that 4K and higher standards loom just over the horizon, it was hugely important that filmmakers be able to access Blu-ray content at a minimum. This rule will allow that.”

Under fair use, filmmakers have long had the right to use copyrighted footage. But, since 1998, when the DMCA was enacted, it has been illegal for documentary filmmakers to rip footage off of DVDs, Blu-ray or digitally transmitted videos. The new exemption has expanded to include higher quality formats.

“What good is fair use if you have no way to access the material you need?” said attorney Christopher L. Perez, Partner at Donaldson + Callif. “This exemption is important for many reasons, but mostly because the previous restrictions limited free speech and those who wished to take advantage of fair use.”

But the exemption doesn’t go far enough for some filmmakers as it only applies to nonfiction work. “While we are delighted as documentary makers that the DMCA exemption has been expanded to include Blu-ray, as fair use advocates we are disappointed that the exemptions was not granted for fiction,” said Gordon Quinn, founder and artistic director of Kartemquin Films. “You cannot lock away people’s rights to comment on culture based on whether or not they chose to express themselves through a medium of fiction or nonfiction.”